Nyembe v The State (Criminal Appeal No. 29 of 201 ) [2004] BWCA 1 (13 January 2004)

murder of the deceased, contrary to Section 202 of the Penal Code. He was also charged with the attempted murder of one Wilson Mphuti, who was with the deceased on the bus. To both these counts the appellant pleaded not guilty. He was furthermore charged with the unlawful possession of the Norinco and seven rounds of ammunition contrary to Section 9 of the Arms and Ammunition Act, Cap 24:01. To these charges he pleaded guilty.

The trial of the appellant in the High Court took place before Kirby 1. who found the appellant guilty on the murder count but also found that there were extenuating circumstances present and sentenced him on this count to 16 years imprisonment. Kirby 1 found the appellant not guilty on the attempted murder charge. On the arms and ammunition charges the appellant was sentenced to a fine of P200.00 or 1 month's imprisonment, both counts being taken together for purposes of sentence.

The state witnesses included Wilson Mphuti, the complainant in the attempted murder charge; one Edgar Moyo, another passenger on the bus, and one Molefi Mokotedi, the driver of the bus which travelled from Johannesburg to Gaborone.

They testified that at a scheduled stop at Zeerust the appellant wished to bring liquor on to the bus and refused to board it when the driver would not allow him to do so. The driver and the deceased then forcibly pushed him on to the bus. During the struggle, it appears that the sleeve of the appellant's jacket was badly torn. This gave rise to angry words being exchanged between the appellant and the deceased on the bus. The altercation broke out afresh after the bus crossed into Botswana at the Kopfontein border gate, when, according to the witnesses, the appellant adopted a threatening attitude to the deceased. When the bus arrived at Gaborone, the appellant alighted from it before the deceased and as the deceased alighted started to fight with him. During the fight, according to Moyo, the appellant produced a fire arm and shot the deceased in the head. The deceased fell to the ground. After shooting him, the appellant then kicked the deceased on the head.

Mphuti said that prior to the shot being fired the appellant said to the deceased "I am going to shoot you". Mphuti said that after shooting the deceased, the appellant walked towards him, pointing a firearm and said "I am going to shoot you too." The firearm made a click sound but no shot went off.

The bus driver's testimony was also that he witnessed the fight at Gaborone bus rank and saw the appellant take out his firearm and shoot the deceased. The appellant then turned on Mphuti. The driver heard a click sound but the firearm did not fire. The appellant then returned to the deceased and kicked him on the

head. The driver said he could see clearly all that happened. It was put to him in cross - examination that the appellant would testify that while he was struggling with the deceased he saw someone standing behind him with a revolver. The driver's response was that "nothing of that sort took place". The appellant thereafter ran away. He was found hiding in the garden of a house in Gaborone West which had an electric fence on top of the wall surrounding the house. He was wearing trousers but no shirt. The appellant was groggy. The owner of the house, one Matthew Price, who also testified, attributed this to the appellant's coming into contact with the electric fence. Price searched the appellant and found a 9 mm pistol in his pocket. Price said the appellant's appearance of being groggy could also have been due to his being drunk. The witnesses on the bus said that the appellant had been drinking.

The appellant's defence was that it was not he who had shot the deceased. He admitted that he was the owner of the Norinco pistol and the ammunition in question but said that the deceased had not been shot with this fire arm. He had been involved at Zeerust in a struggle with the deceased, who had assaulted him by kicking or hitting him and had torn his jacket. On the bus he wanted the deceased to apologise but the latter did not respond. He felt "bad and hurt". He did not continue the argument with the deceased at the border post. At Gaborone, the deceased started the scuffle by first hitting him. The deceased removed his, the appellant's, fire arm from its holster and they struggled for the gun. The appellant's evidence then continues thus:

At that point I saw another man with a fire arm. I got a fright. I tried to move backwards. I then heard a shot go off. The man with firearm was on my left hand side but as the scuffle took us backwards and forwards, I cannot say where exactly he was in relation to us. I do not know which gun went off."

The appellant said he did not believe that it was his gun that went off. As he was running away, he was struck by a car. He did not belive this was an accident. He became dizzy and everything went blank. He remembered nothing more until he found himself sitting on the ground under a tree in a yard where a white man took his gun from his trouser pocket. The police arrived and asked him if he had shot the deceased. He said he did not think so and told the police there was another person there with a gun. Under cross examination, the appellant said the other person with a firearm was about four metres away, holding a revolver not a pistol. He did not know why the stranger was trying to shoot. The witnesses who said he had shot the deceased had told blatant lies. They were , he said , "doctors of lies, allergic to the truth." They had framed him because Mphuti and Moyo were Zimbabweans by origin and were sticking together and the driver was afraid the appellant would lay a charge against him for the assault at Zeerust.

"In assessing the credibility of the witnesses so as to arrive at findings of fact which can safely be made on the evidence available, I am conscious that the events of the night of the 7^ August 1999 took place nearly two years ago, among strangers, at night after a long bus journey, in the context of a fight which suddenly erupted at a fairly crowded bus rank. In those circumstances I would expect neither clinical detail nor total recall. Nor would I expect a total match between the testimonies of the various witnesses. To the extent that there are inconsistencies between the versions of the State witnesses sufficient to create a doubt on the issue in question , this should be resolved in favour of the Accused person."

"For the accused's version (or any of them) to be true, it would be necessary to hold that four independent State witnesses, all previously unknown to each other, conspired dishonestly to formulate false charges against the Accused."

In a well presented argument before this Court Mr. Gaoboi for the appellant took as his main point that the learned trial judge had misdirected himself in his approach to the appellant's evidence and had required the appellant to convince him of the truth of his version rather than to apply the well - known standard of proof in a criminal case of whether the accused's story may reasonably possibly be true (see Lesolame v State 1997 BLR 60 (CA.) at 67 G - H). he founded his argument on the following passage from the judgment of the trial court -

"I also observed the Accused when he gave his evidence on oath, and although he testified with confidence, many aspects of his testimony were, as I shall show, so contradictory, and in some cases so improbable, as to be beyond belief. He was clearly being untruthful when he testified that he did not refuse to board the bus at Zeerust, and that he handed over his drinks on request. If that had been true there would have been no case, as it was these very actions which paved the way for the fatal incident that later occurred. His case was that total strangers on a routine journey to Gaborone attacked him at Zeerust for no reason at all. I reject that as untrue."

This passage, so Mr. Gaoboi argued, showed that the learned trial Judge had, on a peripheral issue, already decided that the appellant was an untruthful witness and with this impression in mind had failed totally to consider whether there was a reasonable possibility that the appellant's version might be true. Mr. Gaoboi said that such failure was further reflected in the passage I cited above as to the three different versions given by the appellant and in the following passage from the judgment -

"Most importantly, I find the Accused's allegation that a total stranger was present with a revolver and fired it, killing the Deceased, to be a far fetched afterthought incapable of belief. No reason has been suggested as to why such a stranger should make so drastic an intervention in a fight which up to that time had involved only minor blows and physical wrestling. The accused moved, in his various explanations, from being unsure which gun was fired, to certainly that it was a revolver held by the stranger rather than his own gun which was 'triple safe.' He moved also from recognizing the person with the gun as being the Deceased's companion, to a position where it was a total stranger whom he had never seen before."

I cannot agree with Mr. Gaoboi's submissions. A trial court cannot simply have regard to an accused's version in isolation. It must consider it in the context of the totality of the evidence, including, of course, that of the prosecution witnesses and, in such context, assess the reasonable possibility of its being true. This Kirby 1 clearly did. Moreover, in considering whether an accused's version may reasonably possibly be true a trial court can also consider the probabilities of the case (See S v Singh 1975 (1) SA 227 (N); S v laffer 1988 (2) SA 80 at 88F). In an oft-quoted passage from the judgment of Lord Denning in Miller v Minister of Pensions 1947 (2) All ER 372 at 373 the following appears (in regard to the standard of proof in a criminal case):

"It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only

a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable', the case is proved beyond reasonable doubt but nothing short of that will suffice."

In my view Kirby J was correct in finding the appellant's version of events so improbable as not to be reasonably possibly true. He therefore had no doubt that it was the appellant who fired the fatal shot with his own pistol , which was in his possession throughout.

This court has stated over and over that it will only interfere on appeal with findings of fact and credibility made by the trial court, which has had the advantage of seeing and hearing the witnesses, where it is convinced that those findings are clearly wrong. In the present case no such conclusion can be drawn. On the contrary a reading of the record shows that the learned Judge was completely correct in his findings. The appellant's sole defence was that it was not he who fired the fatal shot. The State has, in my view, proved beyond reasonable doubt that it was he who did so.

At the conclusion of the hearing of the appeal this Court held that the appeal must fail. It was accordingly dismissed and the appellant's conviction and sentence were confirmed. The Court stated that it would file its full reasons for its decision in due course. These are the reasons.

Botswana: Court of Appeal

Nyembe v The State (Criminal Appeal No. 29 of 201 ) [2004] BWCA 1 (13 January 2004)